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19 April 2006

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William Henderson

Albert,

These are interesting, understudied questions. At one time, the legal academy took them seriously.

In the early 1970s, the DeFunis case raised the issue of reverse race discrimination at Univ of Washington Law School. Although the Supreme Court ultimately ruled that the case was moot (and Justice Douglas famously addressed the merits in this dissent), the case cast a pall of uncertainty on the legality of both affirmative action and high stakes testing such as the LSAT and the bar exam, which had then, as now, large racial disparities in outcomes.

Amidst this strife and controversy, there was a clear movement to study the issues you raise. And some fascinating research was begun, including a very comprehensive study on the whole credentialing process, which was supported by the LSAC, the National Conference of Bar Examiners (NCBE), the ABF, and the AALS. See Alfred B. Carlson & Charles E. Werts, Relationships Among Law School Predictors, Law School Performance, and Bar Examination Results (ETS 1976).

Interestingly, the preface to the ETS monograph discusses the launching of the "Becoming a Competent Lawyer Research Program." The program’s key technical obstacle was the task of formulating a construct of lawyer competency that was (a) amenable to measurement and (b) went beyond analytical ability, which the authors believed was only a subset of general competency. The obvious subtext was that better credentialing tests would have smaller racial disparities.

To date, I have been unable to locate the final postscript on the "Competent Lawyer Project." Phases 3 and 4 apparently never materialized.

One explanation is that the Supreme Court's decision in Bakke made this extremely daunting social science project far less pressing. As a result, to this day, we don't have clear answers to the questions you have raised. Indeed, we cannot say with confidence that there is a strong construct validity between the bar exam and the practice of law. bh.

Gary Rosin

1. Comments on the U. Denver study on the Volokh Consipiracy blog: http://volokh.com/posts/1136334928.shtml

2. The LSAC did a Bar Passage Study a fex yeas back. Dr Linda Wightman, now at UNCG, lfwightm@uncg.edu, was the principal investigator.

3. Deborah J. Meritt and others wrote an article criticizing the methodolgy used by Ohio's consultant to raise the minimum Bar passage rate. 69 U. Cin. L. Rev. 929 (2001).

4. Frederick Link has an article on New York reaising its minimum passing score based onthe same expert & methodology. 22 Buffalo Pub. Int. L.J. 51.

Laura Beth Nielsen

Joyce Sterling has some great research on this. It focuses on the Colorado bar and she looks at a cross section of schools in Colorado (along status lines) trying to figure this out.

Oftentimes these things are done for state bars and so the methodology really has to be teased out to see if it is done carefully. Joyce's is top notch, of course, but sometimes the state bar will pay a consulting firm or do it themselves and it just isn't done well enough.

Also, the after the JD report is out -- a great place to sart looking at over time data on lawyer's careers -- available here:

http://abf-sociolegal.org/afterjd.html

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